Company Threatens EFF With Defamation In Response To EFF Trying To Bust Its Patent

from the slappity-slapp-slapp dept

Back in January, we noted that the EFF had scored another hit in its ongoing patent-busting project, getting the USPTO to re-examine a patent held by Seer Systems. It appears that Seer Systems doesn't much like being targeted by the EFF and decided to threaten the group with a defamation lawsuit over how it described Seer's actions. For example the EFF claimed that Seer was "threatening small companies" and Seer disputes the EFF's definition of small. That seems like pretty fine tooth nitpicking there, and hardly defamatory. It certainly feels like a threatened SLAPP, and (luckily) California has a pretty good anti-SLAPP law, which the EFF's attorney has suggested that Seer Systems acquaint itself with before moving forward with any lawsuits. Either way, it's fairly amazing that anyone would think it's a wise move to threaten the EFF with defamation based on something as weak as whether or not some startup is "small" or not.


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  1.  
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    Anonymous Poster, Mar 6th, 2009 @ 5:16pm

    I think it's fairly amazing that anyone would think it's a wise move to threaten the EFF with defamation at all.

     

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  2.  
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    Anonymous Coward, Mar 6th, 2009 @ 5:54pm

    Is the EFF considered a small organization?

     

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  3.  
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    some old guy, Mar 6th, 2009 @ 6:03pm

    wow

    That's just incredibly ballsy.

    I hope they sue the EFF. What a precedent that would set!

     

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  4.  
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    GeneralEmergency (profile), Mar 6th, 2009 @ 6:09pm

    Who over at Seer is running that clown show?

    If it happens to be you, and you're reading this right now, lemme give some friendly advice.

    Never, and I mean NEVER, threaten lawyers who feel passionate about what they do. Especially with gauze thin crap like this argument.

    And comb your damn hair. You look like hell.

    Ohhh...this is funny...

    SEER SYSTEMS, Inc.
    PMB #133
    4420 Alpine Road
    Portola Valley, CA 94028

    If I google mapped this would I see a three story log cabin in the sat view?

     

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  5.  
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    Anonymous Coward, Mar 6th, 2009 @ 6:11pm

    Dipshits are everywhere.
    Not much you can do about it.

    It would be nice if the judicial system would start doing their part.

     

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  6.  
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    magscanner, Mar 6th, 2009 @ 6:35pm

    EFF

    Hey, I can hear the EFF's knees knocking all the way down here in San Jose.

    So here's my idea: Nathan Myhrvold should fund the EFF a couple million dollars or so to go after the silly-season patents they've identified. God knows there's no shortage of real ideas that might be patented, and this makes him look better, and also keeps the really stupid patents from making people think ALL patents are a bad idea. I suppose he could make the deal contingent on the EFF using some other person's money to sue Intellectual Ventures (his own company), or maybe he should just sign up to have them sue him as well as anyone else they think is abusing the process.

    So here's my second idea: Nathan Myrhvold (or Jeff Bezos or Paul Allen or whomever) funds the EFF with tens of millions of dollars so that they can sit in on his patentability discussions BEFORE they get to the lawyering stage. If the EFF person says, "No way, Nathan, that's a dumb one and we'd sue if they ever issued it," then he's just saved himself a pot of money on filing and defense costs, and again makes himself look even better.

    Using a tiny percentage of his actual patenting costs, NM publishes a "Non-Patenting Journal" describing all the ideas his company decided not to try to patent (this is an old tradition in high tech, but seems to have fallen out of favor), thus establishing prior art such that no other person can ever try to patent the silliness under discussion.

    If Nathan et al decide this is a good idea, they can reward me with a nice dinner at a laundry restaurant I know.

    Mike (a different Mike)

     

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  7.  
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    Avatar28, Mar 6th, 2009 @ 7:18pm

    losing battle?

    Boy, they really know how to pick the losing side of a battle don't they? Isn't threating to sue the EFF like this akin to walking up to a sleeping tiger and kicking it in the face?

     

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  8.  
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    Anonymous Coward, Mar 6th, 2009 @ 9:14pm

    Sounds like a lot of "chest pounding" machisimo by both sides. A letter from Seer's counsel saying, in essence, "You maligned me!", and a response by EFF's counsel that is amateurish at best.

    BTW, for those who may believe that the EFF is a sleeping tiger, a more apt characterization in my view would be that of a sleeping, newborn kitten.

     

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  9.  
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    Paul S, Mar 6th, 2009 @ 10:34pm

    Well

    Just took a look at the seer systems web site, hasn't being updated since 2005... And they currently claim that the 'EFF admits that it's claims are lies'..

    Wonder if EFF have seen that..

     

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  10.  
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    Mike (profile), Mar 6th, 2009 @ 10:35pm

    Re:

    Sounds like a lot of "chest pounding" machisimo by both sides. A letter from Seer's counsel saying, in essence, "You maligned me!",

    Not at all. The letter clearly laid out what it believed was defamatory, which any court would clearly see as not defamatory. And the EFF responded, appropriately, by pointing out the nature of CA anti-SLAPP laws.

     

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  11.  
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    Neutral on Seer, Mar 7th, 2009 @ 8:21am

    Bad Moves, Seer

    This is somewhat reminiscent of the whole Troll Tracker incident, where the then-anonymous blogger was threatened by Ray Niro for disparaging the validity of the "JPEG-on-a-website" patent. These are almost always stupid moves by patent owners, because they elevate the patent to a higher level of prominence which causes more people to look at the patents, better prior art to be located and submitted to the PTO, raising the chances of the patent being declared invalid. As a member of the technical legal community myself, I can tell you that many knowledgeable people out there who didn't know anything about Seer are now going to take a really hard look at Seer's '274 patent.

    I think that only one of the statements attributed to EFF identified in Seer's letter is even arguably a possible subject of a defamation claim -- the statement that Seer is "threatening small companies trying to innovate in this field, like Beatnik." The only fault the letter can draw with this statement is not that it threatened companies trying to innovate in this field (it did), but that the three companies it threatened (Beatnik, Microsoft and Yamaha) were not "small." I think that's pretty weak sauce, frankly. I would agree that Yamaha and Beatnik are both "small" companies when you compare them to the other companies in the music distribution area. And their claim that Beatnik is not "small" because it received $40M in investment funding over a two year period is laughable. That kind of funding is the very definition of a "small" tech company.

    The other statements are more directed at the patent and the patent system itself, such as claiming that it "threatens" public standards, and the more general statement that bad patents are "crimes against the public domain" (which is directed more generally at all of the patents that are the subject of the program). These are not actionable as they are merely opinions which you cannot be proven objectively false. The final portion of the letter also weakly takes issue with the suggestion that the patent inventor failed to identify his book on music publishing to the Patent office, without actually contesting the accuracy of any factual statements by EFF on this issue (and therefore effectively confirms them).

    But I think EFF needs to do a better job of vetting patents for inclusion in its "Patent Busting" project, though, because they're not going after the patents most deserving of their attention. The Seer patent has been up on EFF's website for the Patent Busting project for a few years now. If it is true, as the letter states, that Seer has only threatened three companies on the '274 patent, it was a really bad choice. There are tons of patents out there that are being used to threaten hundreds if not thousands of companies, which EFF hasn't touched. EFF never even had the JPEG-on-a-website patent as part of its project, even though that patent has always had ten times the destructive potential of the Seer patent.

     

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  12.  
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    Yakko Warner, Mar 7th, 2009 @ 10:58am

    Re: Well

    Would that amount to defamation, or libel? :D

     

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  13.  
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    Anonymous Coward, Mar 7th, 2009 @ 11:49am

    Re: Re: Well

    Defamation is a generic term that cover both libel (written words) and slander (spoken words). The comments being in written form, the action would be for libel.

     

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  14.  
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    Anonymous Coward, Mar 7th, 2009 @ 4:19pm

    Re: Re: Re: Well

    In some of the more advanced western cultures, truth is a valid defense for either.

     

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  15.  
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    Anonymous Coward, Mar 8th, 2009 @ 10:03am

    I wonder if the focus on the 'small' technicality may be an attempt to focus on the *type* of organization... If they could argue the technicality that Company X employes 100 people and files taxes as an C-Corp, then they aren't *really* a "small company"... They're a "Big Corporation!" Tada!

     

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  16.  
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    Chuck Money, Mar 8th, 2009 @ 11:13pm

    Re: Who over at Seer is running that clown show?

    PMB = Postal Mail Box

    Translation: No, you'd either see the post office or something like the UPS Store. This, of course, means Seer more than likely is a small business (well...not big enough to have a mail room) or at least in a remote location.

    That said, I think the whole point here isn't weather the business in question is small. 99% of the patents mentioned as being "bad" - by the EFF, Techdirt, or anywhere else - are bad because there's prior art. The USPTO needs to either:

    A) Reject all patents and require a refile - without any refund of filing fee - where there MIGHT be prior art or...
    B) Have a certain minimum period after the patent is filed wherein the new patent holder can only claim limited damages and zero attorney's fees from any lawsuit arising from their new patent. This should probably be between a year and two.

    To explain my second point a bit, in any civil lawsuit, there's "Actual Damages" and "Punitive Damages." If a patent holder files within this initial period, they should be allowed to ONLY collect Actual Damages (that is, specific dollar amounts they can prove that they directly lost as a result of the infringement) and they will have to cover their own attorney's fees, as well as the Defendant's attorneys fees if they lose (so Defense attorneys will agree to take on these cases if the patent is clearly bogus.) After this period, and only then, should they be allowed to claim any Punitive damages (i.e. "we MIGHT have lost this much, but we'll never know for sure...") and collect any attorneys fees.

    What this would do is allow someone who gets a legitimate patent to protect it, while preventing the bullying tactic often used by patent troll attorneys.

    I'm a parelegal, and though our firm does not do patent cases, I have seen attorneys represent clients who are clearly legally in the wrong. We represent mostly trucking companies, and in one instance I remember vividly, a lady was talking on a cell phone, ran a red light 8 seconds after it turned red, and then got hit by a dump truck driven by one of our clients' drivers. She sued us. Legally, she was in the wrong, and she totaled an $80,000+ dump truck, but even with insurance to pay for her very minor injuries, she sued us. We eventually counter sued, won, and got a $47,000 judgment against her, but the legal fees for depositions, briefs, etc - costs we ourselves had to pay to others - was over $20k, and odds are good that our client will be lucky to see $5k of the money. My point is that though I have seen the legal system help out the poor time and again, the problem is not the system, but those working within it. The legal system is somewhat like a game of blackjack. You can play fair and you might win or might lose but it will be worth trying because your odds are as good as what you make them to be. But some people will always use dirty tricks to win when the law says they shouldn't. The problem with the legal system is that casino security doesn't come and throw you out the door when you pull those tricks.

    Of course, if you want my honest opinion, I think we should just kill all the idiots and convert the world to Communism, then this would be irrelevant, but while we're stuck with this system, a grace period plan like what I have described would fix most of these problems.

     

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  17.  
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    Anonymous Coward, Mar 9th, 2009 @ 8:05pm

    "Of course, if you want my honest opinion, I think we should just kill all the idiots and convert the world to Communism, then this would be irrelevant, but while we're stuck with this system, a grace period plan like what I have described would fix most of these problems."

    You first, idiot.

     

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